Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: June 17, 2016
CASE NO.: 11-125
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Nagata Auto Parts Canada Co., Ltd. (ERT Case No. 11-125)
Appellant: Nortel Networks Limited/Corporation Nortel Networks Limited (ERT Case No. 11-126)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order regarding the maintenance and operation of a groundwater extraction and treatment system, the name of a qualified Consultant to carry out the work of a clean-up plan and the discharge of volatile organic compounds, trichloroethylene and its breakdown products from operations impacting groundwater.
Reference No.: 3250-8J4J3G
Property Address/Description: Site 1) Concession 3, PT Lot 15 RP 33R13850 Parts 3 to 5 Site (2) Concession 3, PT Lots 14 & 15 RP 33R12879 Parts 1 & 2 Site 3) Concession 3, PT Lots 14 & 15 RP 33R12879 Parts 3 to 9, and Site 4) Concession 3, PT Lot 15 RP EER13850 Parts 6 to 8
Municipality: County of Middlesex
ERT Case No.: 11-125
ERT Case Name: Nagata Auto Parts Canada Co., Ltd. v. Ontario (Environment and Climate Change)
Heard: November 18, 2014, December 11, 2014, January 14, 2015, February 25, 2015, August 28, 2015, November 24, 2015, December 18, 2015, and April 1, 2016 by teleconference calls
APPEARANCES:
Parties Counsel
Nortel Networks Limited/Corporation Nortel Networks Limitee Alexandria Pike
Nagata Auto Parts Canada Co., Ltd. Laird French
Director, Ministry of the Environment and Climate Change Danielle Meuleman
Freightliner Properties Ltd. Aaron Atcheson
The Corporation of City of London Janet Page, Geoffrey Belch and Lynn Marshall
ORDER DELIVERED BY PAUL MULDOON
REASONS
Background
1On October 7, 2009, Provincial Officer Don Hayes of the Ministry of the Environment (“MOE”, now the Ministry of Environment and Climate Change, “MOECC”) issued Provincial Officer’s Order Number 6548-7WJKV4 (the “Provincial Officer’s Order”) to Nortel Technology Limited/ Nortel Technologie Limitee (“Nortel”) and Nagata Auto Parts Canada Co., Ltd. (“Nagata”), the Corporation of the City of London (the “City of London”) and Freightliner Properties Ltd. (“Freightliner”), concerning the impacts from contamination from volatile organic compounds (“VOC”), trichloroethylene (“TCE”) and its breakdown products on groundwater at various locations on property located in the County of Middlesex, London, Ontario, where Nortel carried on business until 1994. More specifically, Nortel’s property was subdivided into four sites in 1997, with Nortel retaining ownership of Site 1 (Concession 3, PT Lot 15 RP 33R13850 Parts 3 to 5) (“Site 1”). Site 2 (Concession 3, PT Lots 14 & 15 RP 33R12879 Parts 1 & 2) is currently owned by Nagata and is occupied by London Automotive and Manufacturing (“Site 2”); Site 3 is owned by the Corporation of the City of London (“the City of London”) (Concession 3, PT Lots 14 & 15 RP 33R12879 Parts 3 to 9) (“Site 3”); and Site 4 is owned by Freightliner Properties Ltd. (“Freightliner) (Concession 3, PT Lot 15 RP EER13850 Parts 6 to 8) (“Site 4”).
2In 1999, Nortel paid for the installation of a groundwater extraction and treatment system (the “System”) to address the contamination on Sites 1 and 2. The System was operating under Certificate of Approval (Air) (“CofA”) Number 5590-5J9TE4. In June 2009, the Provincial Officer obtained the Annual Monitoring Program Reports (the “Annual Reports”) from the consultant retained to manage the system. When reviewing the Annual Reports, the MOECC technical staff questioned the effectiveness of the System and its ability to keep contamination from migrating from Sites 1 and 2.
3In general terms, the Order requires Nortel and Nagata to provide to the MOECC the name of a qualified consultant who would submit a clean-up plan to prevent or reduce the risk of a discharge of groundwater impacted with VOC and TCE into the natural environment from any of Sites 1, 2, 3 or 4, and to prevent, decrease or eliminate any adverse effects that might result from such a discharge of those substances in, on or under the Sites. Further, the order requires the City of London and Freightliner to make their respective Sites available for the purposes set out in the Provincial Officer’s Order.
4On October 26, 2009, Nortel requested a review of the Provincial Officer’s Order by the Director. On October 29, 2009, Director’s Order No. DO-6548-7WJKV4 was issued to Nortel confirming the Provincial Officer’s Order in its entirety (the “2009 Director’s Order”).
5On November 17, 2009, Nortel Networks Limited and Nortel Networks Technology Corporation, successor to Nortel Technology Limited/ Nortel Technologie Limitee, filed a Notice of Appeal with the Environmental Review Tribunal (the “Tribunal”) with respect to the 2009 Director’s Order. A Preliminary Hearing took place on February 22, 2010 in London, Ontario.
6During a telephone conference call (“TCC”) on July 26, 2011 pertaining to the 2009 Director’s Order, the Director informed the Tribunal that he intended to revoke the 2009 Director’s Order and that another Order was issued on July 20, 2011: Director’s Order No. 3250-8J4J3G (the “2011 Director’s Order”), which has been appealed by Nortel and Nagata. While the 2011 Director’s Order is substantially similar to the 2009 Director’s Order, it also provides for additional responsible parties and addresses additional concerns about the Sites. The Tribunal held a TCC on August 3, 2011 during which both Nagata and Nortel requested a stay of the 2011 Director’s Order. The Tribunal issued an Order dated August 25, 2011 staying portions of the 2011 Director’s Order (the “Stay Order”).
7Since that time, the matter has come before the Tribunal on a number of occasions as the parties updated the Tribunal as the matter proceeded through the courts under the Companies’ Creditors Arrangement Act. Various extensions to the stay were granted. Once the court proceedings were completed, a number of further TCCs were held as the parties made serious attempts to resolve the matters among themselves. On October 3, 2014, the Tribunal, on consent, extended the stay and granted amendments to it.
8Since that time, eight TCCs have been held, and the stay extended, while the parties continue with settlement discussions. At the same time, there were various tests being conducted at the Sites and reporting back on those tests. During TCCs held on November 24, 2015, December 18, 2015, and April 1, 2016, both the City of London and Freightliner requested party status and requests were made that the stay be further extended.
Discussion, Analysis and Findings
9During the TCCs on November 24, 2015, December 18, 2015, and April 1, 2016, the parties did not oppose the granting of party status to Freightliner on specific terms, as outlined below. In particular, in correspondence to the Tribunal dated October 15, 2015, Alexandria Pike, counsel to Nortel, outlined that Nortel and Freightliner had agreed that party status granted to Freightliner is related to an area known as “Site 4, Area C.” The Tribunal finds that Freightliner should be granted party status, on the terms set out below, since it meets the test in Rule 63 of the Tribunal’s Rules of Practice. Similarly, the Tribunal finds that the City of London should be granted party status as it meets the test in Rule 63. The Tribunal also agrees to the terms of its party status as agreed to by the parties and outlined below.
10The Tribunal finds that it is appropriate to extend the stay until June 15, 2016 since the parties will revisit this issue at the next TCC.
ORDER
11The Tribunal orders that:
The stay in this matter is extended to June 15, 2016.
Freightliner is granted party status with respect to this matter as it relates to Site 4 and Area C.
The City of London is granted party status as it relates to Site 3.
Party Status Granted
Request to Amend the Stay Granted
“Paul Muldoon”
PAUL MULDOON
VICE-CHAIR
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